An assortment of all things interesting (and possibly useless) in the legal profession

Saturday, February 14, 2009

On a "Medical-Based" approach to legal education

We need innovative solutions to some of the emerging problems facing the legal industry. I sat down and began to think of a way that legal education may be able to adapt and better serve the needs of law firms, other legal employers, and students themselves. A good model after which the legal educational system could be framed (at least in theory) is the medical school model. I often sit through class and wonder why theoretical matters are emphasized ad nauseam in various legal courses. Granted, I think that it is worthwhile to understand (at least to an extent) the underlying policies behind the law; this is particularly true in courses where policy forms the fundamental basis of the rules. But this only extends to a point, and it must be remembered that, in order to be marketable, students need to understand how to apply the law coherently and logically.

At least plausibly, they get this crucial skill by outlining, reading cases, discussing the gleaned concepts in class, and by simply taking exams. As it stands now, however, all of this is still done within a paradigm of theory, and there are not many opportunities for law students to, while in the course of their studies, gain practical knowledge--the kind they need to actually thrive in the workplace. Legal clinics exist, but in most cases, are not mandatory. And if you've ever tried to get into a clinic, at least at a few schools, you might know just how difficult it is.

A good initial idea would be to keep the first year curriculum much the same as it is now, but to provide different "hands-on" opportunities to apply the concepts learned in class. For example, students in a civil procedure course could be required to participate in bi-semester externships focused on brief writing. Further, perhaps the entire third year could be spent in clinical programs that would include rotations between different practice areas so that a student could gain a feel for the area of law he or she is interested in. Washington & Lee Law School has adopted such a program. As they state:

The new third year at W&L is entirely based on learning through engagement - combining practicum courses, practice simulations, client interactions, the formation of professional identity and the cultivation of practice skills. Third year students will now move beyond the learning process of the first and second years of law school to prepare for the transition to professional practice.

Students will build on the lessons and law of the first and second year curriculum to pursue a mix of courses that engage them in lawyering, legal clinics and externships. This emphasis on lawyering and expressing professional judgment will serve as a true capstone for a W&L legal education, producing future lawyers that will be ready for practice from day one.

This program would make the third year of law school somewhat tantamount to the residency requirement for physicians, only in the variant described in this post, it would include the ability to rotate. By producing attorneys who are skilled upon entering the workforce, training would no longer be the employer's sole responsibility. Hours would be better spent, and clients better served if law schools across the nation were to adopt an approach similar to Washington & Lee's, and provide tomorrow's lawyers with skills they actually need to thrive.

18 comments:

there's appeal to the idea that the third year is alla bout funding the law school machine, and i think your argument is a variant of that claim..but its wrong. theory is not a way for schools to justify high tuition and 3 years of schooling. rather, ti's a necessary component of a well-rounded education. application of the law necessitates theoretical grounding. it cannot be taught without a primary focus or emphasis on theory. it just can.t

I don't necessarily agree with everything Nima says here. Having said that, I think you need to provide a little bit more in the way of support for your contention that theory is a necessary prerequisite for application of legal rules. I don't think it's self-evident by any means.

I think @ 6:45 is right to say that theory is a necessary component of a well-rounded education. But wouldn't a "well-rounded" education necessarily entail a focus on more practical skills to go along with the teaching of legal theory? The "learning through engagement" program at W&L seems to be the quintessential example of a "well-rounded education."

Two years of theory based legal education may be sufficient. A third year focusing on practical application of legal principles sounds like an attractive option.

You wrote: "But this only extends to a point, and the bottom line is that, in order to be marketable, students need to understand how to apply the law coherently and logically." Where do you get this idea? "Marketable" means what school you went to, what grades you got there, perhaps what classes you took if you are going into a particular field like taxes. Not a single interviewer asked me what specific hands-on training I have. Law firms are fully aware you don't know anything about practicing law when you get out of law school--they don't expect you to.

Don't you go to Penn? There's a reason W&L is like #25 in the rankings and Penn is #6. Penn teaches theory. Penn produces better lawyers. Anyone can learn the specifics of practicing law in a few months of work--what you can't learn is the theory.

It seems odd to me to go to Penn and complain because it's not more like a less respected school. Why in the world didn't you just go to W&L? You probably would have saved yourself some money! And again, if you are right that hands-on experience makes you marketable, why are you, a graduate from Penn, going to have so much easier a time finding a job then the much better trained graduate of Washington and Lee?

@7:00--what you seem to be missing is the POINT of the theory. If you still think there is a "right" answer, a la medicine, you seem not to have understood at its most basic level what the practice of the law IS. (Too much facebook in class, perhaps?)

The "right answer" in law school is that there IS NO RIGHT ANSWER. That's not some theoretical claptrap--that's your job. The "right answer" is told to you by the client that comes through your door. Someone crashed into your car? That driver was negligent! You crashed into someone's car? The guy you hit was negligent!

The theory is what allows you to formulate convincing arguments for either side. Nothing could be less important or relevant to a good lawyer than the particular rules of the court you are arguing before.

Interesting reply. I think you misunderstood my reply @ 7:00...I was not saying that I think theory/policy/etc. is "irrelevant" for legal education. Rather, I was saying I'd like 6:45 to explain what was meant by his or her post. The reasoning seemed to presuppose the conclusion, and I wanted more in the way of a response. If you are 6:45, consider this an additional invitation to elaborate further on your point.

I'll let Nima respond to your post more fully, but briefly:

1) I don't read his discussion to be advocating completely abandoning all discussion of theory. I think he recognizes that there is a lot of ambiguity in the law...that's obvious.

2) The fact that Penn is (currently) ranked higher than W&L and (currently) regarded more favorably by employers does not mean W&L's approach is not better than Penn's. I think Nima realizes that employers currently expect to bear the brunt of training; what he is arguing is that, as the economic crisis deepens, these expectations may shift. As he states: "[b]y producing attorneys who are skilled upon entering the workforce, training would no longer be the employer's sole responsibility. Hours would be better spent, and clients better served if law schools across the nation were to adopt an approach similar to Washington & Lee's." His point, then, is that reforming the model may be changing and that this would be a solution to problems posed by that change.

3) W&L's approach is, so far as I am aware, of very recent vintage. I don't think Nima's law school choice can be said to reflect a preference for Penn's approach over W&L's; he never had the opportunity to make this decision. I'll let him answer whether he would choose differently if he were making that decision today.

Thank you for your post; your comments were very insightful. There are a few points I want to address in turn:

1. Craig is correct that I did not advocate the abandonment of theory from the law school curriculum. You quoted me, but I think you cut off the latter portion of that quote, placing it out of context. Specifically, I said, "[g]ranted, I think that it is worthwhile to understand (at least to an extent) the underlying policies behind the law; this is particularly true in courses like Conflict of Laws, where policy forms the fundamental basis of the rules. But this only extends to a point, and the bottom line is that, in order to be marketable, students need to understand how to apply the law coherently and logically." In sum, I acknowledge the importance of theory.

2. You also stated, "[y]ou probably would have saved yourself some money! And again, if you are right that hands-on experience makes you marketable, why are you, a graduate from Penn, going to have so much easier a time finding a job then the much better trained graduate of Washington and Lee."

First of all, I think you make some good points about marketability as a general proposition. But there are a number of ways to look at marketability; I was speaking of it in the economic sense. You see, all that matters, as far as firm business is concerned, is how much value an associate can add to the firm (an associate's marginal value product). My post simply suggests that allowing law students more "hands-on" experience would be a way of adding--on a marginal basis--to this value. In other words, firms would not have to spend as much in training to get an associate up to speed on things she should have learned in law school.

3. Next, you alluded to the fact that Penn is "higher in the rankings" and therefore, this has to because of the fact that Penn teaches theory. Further, you state that, from this premise, it might follow that Penn produces better lawyers. I don't think that this conclusion follows so easily. Even if I take your assumptions as true, there are a number of other reasons that Penn purportedly "produces better lawyers." It is not at all obvious it is because of the "theory" the school teaches.

I need to also be clear that I do NOT agree that it is necessarily true that Penn produces better lawyers than W&L; there are too many factors to consider when making such a broad assertion, and I just don't have the resources to adjudge that statement.

4. You neglect to consider that theory cannot be learned and utilized when learning "on the job" (e.g., through clinical opportunities, externships, etc.). Does a law student really need a professor to illuminate theories that are persuasive to a favorable outcome of his case in order for him to figure it out himself? I don't think so. This is how you learn how to practice in the first instance. Why not make it on the law school's time, instead of the firm's?

5. Finally, while I think that it is true that certain law schools place considerably better than others, I don't think for one minute that curriculum standards would stay the same if law firms had a larger say in what basic skills an associate should have upon entering the firm. This is a profession based largely off of reciprocity and prestige, and as Craig nicely noted, "as the economic crisis deepens, these expectations may shift." This is the reason I wanted to open this post up to discussion.

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I want to be clear that I do not think that I have the right answers; I don't think any one person does. My intuition is that discussion of this issue can (hopefully) blossom good ideas. Having said that, I do not believe the status quo is sustainable.

great points made on both sides here...I think we could split the difference and really use the first 2 years of law school to kind of get theoretical underpinnings of the rules, and then the 3rd year (if its necessary at all) to get practical experience...much the way Joshua mentioned above.

I think one difference between the legal and medical profession is that in the medical profession, there appears to exist a workable dichotomy between the advancement of medical research versus actual medical treatment (although of course they are not mutually exclusive).

It is frequently the case that scientists with Ph.Ds enter the medical research field, formulating theories and conducting the cutting edge experiments that result in advancement of the profession, whereas students typically obtain MDs with the intent to "practice" medicine. These two groups proceed on two different paths.

Now, contrast this with the legal environment, where scholars and practitioners are funneled through the same three-year program. Mandating a more "practical" legal education akin to its medical school cousin could have the unintended consequence of retarding the continued evolution of legal theory, which, however abstract and irrelevant it may seem at times, is critical to the advancement of law just as research and experimentation is indispensable to medical practitioners.

Of course I agree with many of the points made by Nima, and definitely recognize the issues he raises. My point is simply that we should be cautious about so quickly drawing an analogy to the medical school format for education. There is a reason why the systems are different.

This statement: Ph.Ds enter the medical research field, formulating theories and conducting the cutting edge experiments that result in advancement of the profession, whereas students typically obtain MDs with the intent to "practice" medicine...

I think is a little suspect. I think a lot of the "cutting edge experiments that result in advancement of the profession" are certainly done by MDs. But, on a different level, I think that law and medicine are not really comparable. The only practical comparison is whether the professional elements of both necessitate practical based curriculum.

Great points. I think you have mentioned some good cautionary critiques of analogizing the medical school model to the law school model. However, I still think a W&L-like system can still hurdle those critiques. First, I think that, while there is a "workable dichotomy between the advancement of medical research versus actual medical treatment," it is not necessary for legal education to totally mirror the medical school model. Theory is undeniably vital to core legal analysis, but this does not by any means suggest that we should abandon all attempts to give future lawyers the functional tools they need to practice.

I think that a "workable dichotomy" could be developed within the confines of the law school, for example, by allowing students interested in entering academia (our Ph.Ds in your example) to pursue a more theoretical-based curriculum.

I want to reiterate that my ideas are, after all, only ideas. There are, to be sure, a number of ways to approach these issues; the goal at the end is to hope only for better answers to the problems facing the legal educational system.

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